Jan Caunter: Contaminated land an issue of liability

COMMENT


Many landowners will be contemplating how to respond to correspondence from the Auckland City Council advising them their land is, or is potentially, contaminated and requiring them to undertake soil testing.

Many more should see this as a sign of things to come, not just in Auckland City, but nationwide.

It is well known that many areas of the Auckland region have a long history of horticultural use involving the use of pesticides. For many decades horticulture flourished and brought considerable economic benefit. But it was not controlled in any significant way until the 1959 Agricultural Chemicals Act, which brought compulsory regulation. Particular regimes were then adopted to control pesticide use but not to prevent it.

The 1991 Resource Management Act has, in time, resulted in a much greater awareness of environmental matters and a facing-up to the hard task of addressing damage that exists, or potentially exists, from activities lawfully carried out some time ago.

As part of its responsibility for developing the Auckland regional growth strategy, which designates particular areas for greenfields development, the Auckland Regional Council began a research project identifying a number of properties that were either known to be contaminated or were potentially contaminated.

In 2002 it released a document entitled Pesticide Residues in Horticultural Soils in the Auckland Region. This, according to the ARC, was designed to measure the level of residual contamination in soils on horticultural properties and to evaluate the significance of any residual contaminant, using New Zealand and overseas guidelines.

The ARC recommended that local authorities should require contaminated-site assessments before allowing a change in land use, subdivision or redevelopment on greenfields sites, and ensure that the reuse of soil from horticultural properties did not pose unacceptable risks to health or the environment.

According to statements, the ARC study involved sampling 43 horticultural and agricultural sites, only one of which was within Auckland City boundaries. It found that historic activity had resulted in comparatively elevated levels of contaminants on about 45 per cent of the regional sites.

The Auckland City Council then apparently did its own desktop study, reviewing aerial photos from the 1940s and 50s to identify properties that could be the sites of former horticultural activities.

The Waitakere City Council has apparently also undertaken this exercise and has recorded information on a number of land information memorandum (LIM) reports after 3000 properties were identified as potentially contaminated. No doubt other local authorities in the region will follow.

The real issue that all local councils and public health authorities need to address is the extent, if any, of the health risk arising from the sites identified. If these are not sites being redeveloped or subdivided into residential land, or sites where soils are being reused in some way, there should be further inquiry into the level of health risk arising from the confirmed presence of contaminants in soils or the possibility of contaminants being present.

Landowners will be asking themselves who is liable for the clean-up of contaminated land. While the polluter might seem an obvious target, it should be remembered that the horticultural activities were lawfully carried out, with the blessing of local authorities. In many cases, the polluters will have moved on and the properties once used for orchards will have been sold many times over.

This raises another issue. If the landowners now facing the costs of paying for soil sampling on properties no longer used for horticulture and which have been subdivided over the past few decades, why was that land allowed to be subdivided at the time? And what knowledge did local authorities have about the extent of the contamination on the land and the risks at the time the subdivisions were approved?

This is not easily addressed, either. It could be expected that much of the land in question was subdivided some years before the dangers of pesticide use and its flow-on effects on soils were recognised and accepted.

It would be fair to say that landowners whose land has been identified as either contaminated or potentially contaminated are sitting ducks. They face the prospect of being required to take action deemed necessary to avoid, remedy or mitigate any actual or likely damaging effect on the environment.

Property developers, too, should equally be alert to contamination liability. While many commonly work through contamination issues as part of their due diligence exercise, others enthusiastically pursue developments without stopping to consider potential liability for site clean-up.

Developers will need to address contamination issues and questions of indemnity in any agreements to buy land. Property owners nationwide need to be alive to the possibility of contamination risk coming home to roost.

The Auckland City Council's action this week is a classic example of a cat chasing its tail. Before imposing costly responsibilities on landowners, it should be very clear about the existing or potential health risk arising from the presence of pesticides and any other contaminants on land.

It should also seek input from the ARC and public health officials about those risks, and how they should be managed. There may, in fact, be no health risk. But whose job is it to prove that?

The Government and public health officials must take responsibility for driving this matter and providing a framework to quantify the magnitude of risk and the remedies required. This should include drafting national guidelines, as well as introducing legislation addressing liability issues. Without this, the tail-chasing will continue.

* Jan Caunter, a partner at Auckland legal firm of Ellis Gould, specialises in contaminated-site issues.